Salleh Abas LP:

Each of us has a separate judgment. My judgment is complementary of that of my learned brother Tan Sri Dato E. Abdoolcader, with whom I agree.

This is an appeal from the decision of Harun J dismissing the appellant's application to set aside an ex parte order given by the Chief Justice allowing for the taking of evidence before the High Court upon a letter of request issued by Hongkong High Court; such evidence to be used in a criminal proceeding pending in Hongkong and the evidence is to be recorded before Harun J himself.

The appellant is one of the accused who are subject to the criminal proceedings in Hongkong. Another person is Lorrain Esme Osman. He was not a party to the proceeding to set aside the ex parte order before Harun J. Upon application by his Counsel to intervene in this appeal we allowed his application in terms of prayer one of his Notice of Motion only.

The impugned ex parte order was made under the provision of O. 66 r. 1 of the Rules of the High Court 1980.

Mr. R.R. Sethu for the appellant submitted that the impugned order is bad and must be set aside because, firstly O. 66 r. 1 does not apply to a matter in relation to criminal proceedings and secondly there is no statutory authority empowering the High Court to make the impugned order. According to him O. 66 being a rule of Court confers no power upon it to make the order, nor is there any provision for this purpose to be found in the Courts of Judicature Act . Mr. M.S. Murthi for the intervener adopted Mr. R.R. Sethu's argument.

I have the benefit of reading the judgment of my learned brother Tan Sri Eusoffe Abdoolcader. I agree with his judgment and conclusion on both the questions.

In my judgment I wish only to add that the statutory powers of the High Court in addition to s. 16(2) can also be found in s. 25 .

The present High Court is the same as the High Court which was established under the Scheme of the Federation of Malaya Agreement 1948 (Clause 77). At present the High Court is governed by the Courts of Judicature Act, 1964 (Act 91) , whilst previously it was governed by a Federation of Malaya (FM) Ordinance, i.e., the Courts Ordinance, 1948. This Ordinance was passed pursuant to Clause 77 of the FM Agreement reaffirming the establishment of the High Court and when the country achieved Independence in 1957, the Ordinance continued to be in force without modification at all."

The question which I have to address my mind to is whether the High Court then established under the 1948 Ordinance had the power to act upon letters of request issued by foreign Courts. If it had, a further question will arise as to whether after the formation of Malaysia that power continued to be vested in the Court.

The 1948 Ordinance established a composite Supreme Court consisting of the High Court and the Court of Appeal. The Ordinance set out the original criminal and civil jurisdiction of the High Court in its First and Second Schedules respectively. It also made provisions in s. 99A to the effect that "the Supreme Court ... shall have the further powers and jurisdiction set out in the Third Schedule to this Ordinance". The Third Schedule consisted of 26 paragraphs, one of which, being the relevant one for the purpose of this appeal is para. 13 which is as follows:

The High Court may, on application made in the manner prescribed by Rules of the Supreme Court, issue commissions and letters of request and may execute commissions and act upon letters of request issued by foreign Courts.

No modification to the Ordinance was made upon the country obtaining Independence in 1957. Least of all the power to issue and act upon letters of request to and from foreign Courts. The result was that on and after Merdeka Day the High Court continued to have this power.

Consequent upon the formation of Malaysia in September 1963, the parts of the 1948 Ordinance which dealt with the Supreme Court were repealed and reenacted by the Judicature Act 19